Page 989 – New York Appellate Digest

NEGLIGENCE AND LABOR LAW 200 CAUSES OF ACTION IN THIS ELECTROCUTION CASE SHOULD HAVE BEEN DISMISSED, NO CODE VIOLATIONS, DEFENDANTS NEVER NOTIFIED THE TRANSFORMERS IN THE ELEVATOR CONTROL ROOM CONSTITUTED A DANGEROUS CONDITION (FIRST DEPT).

The First Department, reversing Supreme Court, over a two-justice dissent, determined the negligence and Labor Law 200 causes of action based upon allegations of “poor lighting” and the failure to provide a cover to protect against electrocution should have been dismissed. Plaintiff’s decedent was an elevator mechanic who was electrocuted when he came into contact with a transformer in the elevator control room. There were no witnesses to the accident. Plaintiffs did not allege the level of lighting constituted a code violation. The absence of a cover over the transformer did not violate any applicable code and defendants were never notified of a problem with the transformers, which had been routinely inspected:

With regard to the issue of whether defendants caused or created a hazardous condition, there is no dispute that [defendants] not design or manufacture the elevator control cabinet, or any of its electrical components, including the transformers … .

As to whether defendants had notice of the alleged dangerous condition … the building’s property manager… testified that he was never informed that there was any problem with the elevator control cabinet or that the transformers lacked a proper cover either by the DOB or by United despite the fact that both DOB (NYC Department of Buildings) and [the defendant elevator consultant service] conducted inspections of the ninth floor motor room. [The consultant-service president] testified that a cover was not required on the transformers because the transformers were in an enclosed cabinet. …

Even if the elevator control cabinet did not comply with the [American National Standards Institute (ANSI)] standard because the transformers did not have a cover, plaintiffs have failed to establish that defendants were required by law to comply with the … ANSI standard. Indeed, the … ANSI standard has not been adopted by or incorporated into New York City’s elevator code and ANSI itself is not a statute, ordinance or regulation. Thus, a violation thereof is not evidence of negligence … . Bradley v HWA 1290 III LLC, 2018 NY Slip Op 00516, First Dept 1-30-18

NEGLIGENCE (LABOR LAW 200, ELECTROCUTION, NEGLIGENCE AND LABOR LAW 200 CAUSES OF ACTION IN THIS ELECTROCUTION CASE SHOULD HAVE BEEN DISMISSED, NO CODE VIOLATIONS, DEFENDANTS NEVER NOTIFIED THE TRANSFORMERS IN THE ELEVATOR CONTROL ROOM CONSTITUTED A DANGEROUS CONDITION (FIRST DEPT))/LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200, ELECTROCUTION, NEGLIGENCE AND LABOR LAW 200 CAUSES OF ACTION IN THIS ELECTROCUTION CASE SHOULD HAVE BEEN DISMISSED, NO CODE VIOLATIONS, DEFENDANTS NEVER NOTIFIED THE TRANSFORMERS IN THE ELEVATOR CONTROL ROOM CONSTITUTED A DANGEROUS CONDITION (FIRST DEPT))/AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI) (LABOR LAW 200, ELECTROCUTION, NEGLIGENCE AND LABOR LAW 200 CAUSES OF ACTION IN THIS ELECTROCUTION CASE SHOULD HAVE BEEN DISMISSED, NO CODE VIOLATIONS, DEFENDANTS NEVER NOTIFIED THE TRANSFORMERS IN THE ELEVATOR CONTROL ROOM CONSTITUTED A DANGEROUS CONDITION, VIOLATION OF AN ANSI STANDARD IS NOT EVIDENCE OF NEGLIGENCE (FIRST DEPT))/LIGHTING (LABOR LAW 200, ELECTROCUTION, NEGLIGENCE AND LABOR LAW 200 CAUSES OF ACTION IN THIS ELECTROCUTION CASE SHOULD HAVE BEEN DISMISSED, NO CODE VIOLATIONS CONCERNING THE ALLEGEDLY INADEQUATE LIGHTING ALLEGED, DEFENDANTS NEVER NOTIFIED THE TRANSFORMERS IN THE ELEVATOR CONTROL ROOM CONSTITUTED A DANGEROUS CONDITION (FIRST DEPT))

January 30, 2018

/ Disciplinary Hearings (Inmates)

HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT).

The Third Department determined petitioner was entitled to a new hearing because the hearing officer did not make an adequate inquiry into the reasons an inmate witness who had previously agreed to testify later refused:

Generally, we have held that, in situations where an inmate witness who had previously agreed to testify but later refuses without giving a reason, “it is incumbent upon the Hearing Officer to conduct a personal inquiry unless a genuine reason for the refusal is apparent from the record and the Hearing Officer makes a sufficient inquiry into the facts surrounding the refusal to ascertain its authenticity” … . While the personal inquiry by a hearing officer may be limited in situations where, as here, the requested witness is housed in a different correctional facility, the record does not reflect that the Hearing Officer made any attempt to personally interview the witness to confirm the reason for the refusal, to obtain a written refusal form from the witness containing such a reason or to call the correction officer who interviewed the witness to testify at the hearing. In our view, petitioner’s regulatory right to call this witness was not adequately protected and that part of the determination finding petitioner guilty of assault, refusing to obey a direct order and possessing a weapon, as charged in the first misbehavior report, must be annulled and remitted for a new hearing on these charges … . Matter of Radcliffe v Annucci, 2018 NY Slip Op 00505, Third Department 1-25-18

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT))

January 25, 2018

/ Disciplinary Hearings (Inmates)

FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT).

The Third Department determined the finding that petitioner possessed a weapon which was found in a cube shared with other inmates was not supported by substantial evidence:

Petitioner denied any knowledge of the weapon, and the record reflects that he shared the cube with other inmates. The cube was separated by a divider into two living areas, with petitioner and another inmate sharing one side and at least one other inmate housed on the other side. The correction officer who authorized the search, and was present when the weapon was found, testified that the weapon was discovered under the center of the divider. According to the officer, all the inmates housed in the cube had access to that area because the divider was movable and it could be easily lifted. The correction officer who discovered the weapon testified that it was located closer to the side of the divider where petitioner and another inmate were housed and that it would have been more difficult for inmates housed on the other side of the divider to place the weapon there. There is no evidence in the record to support a finding that petitioner possessed the weapon and, in our view, the evidence presented does not eliminate either the inmates housed on the other side of the divider or the inmate who shared petitioner’s side from being responsible for possessing it. Further, under the circumstances presented here, “we do not believe that a reasonable inference can be made that petitioner possessed this contraband simply because he had access to the area where the contraband was found and that it, to some extent, was under his control” … . Matter of Carter v Annucci, 2018 NY Slip Op 00501, Third Dept 1-25-18

DISCIPLINARY HEARINGS (FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT))

January 25, 2018

/ Criminal Law

POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT).

The First Department determined defendant was not in custody at the time he made statements, despite the presence of several police officers and one officer’s expectation that defendant would be arrested. Therefore defendant’s motion to suppress the statements was properly denied:

Although several officers were present, they did not have their guns drawn, did not handcuff or restrain defendant in any way, and did not otherwise create a coercive or police-dominated atmosphere … . A reasonable innocent person in defendant’s position would not have thought that he was in custody … , but rather “that the police were still in the process of gathering information about the alleged incident prior to taking any action” … . The officer’s expectation that defendant would be arrested, based on the victim’s complaint, was not conveyed to defendant. “A policeman’s unarticulated plan has no bearing on the question whether a suspect was in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation” … . People v Clarke, 2018 NY Slip Op 00472, First Dept 1-25-18

CRIMINAL LAW (CUSTODY, SUPPRESSION OF STATEMENT, POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT))/CUSTODY (CRIMINAL LAW, SUPPRESSION OF STATEMENT, POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, STATEMENT, CUSTODY, POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT))

January 25, 2018

/ Civil Procedure

PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT).

The First Department determined plaintiff had sufficiently demonstrated personal jurisdiction over a New Jersey radiation therapy clinic (PPM) to be entitled to disclosure under both CPLR 301 (general jurisdiction) and 302 (specific jurisdiction):

Plaintiff made a “sufficient start” in establishing that New York courts have jurisdiction over PPM under CPLR 301 and 302(a)(1) to be entitled to disclosure pursuant to CPLR 3211(d) … . With regard to general jurisdiction, codified in CPLR 301, it is not clear whether PPM’s “affiliations with the State [New York] are so continuous and systematic as to render [it] essentially at home in the [] State” … . However, the record contains a State filing in which PPM identified itself as having a principal place of business in Manhattan — “tangible evidence” upon which to question PPM’s claims to the contrary … .

With regard to specific jurisdiction (CPLR 302[a][1]), the record shows that PPM’s activities in New York were “purposeful and [that] there is a substantial relationship between the transaction and the claim asserted” … . PPM chose and marketed its Somerset, New Jersey, location to target New York residents, touting its proximity to New York in advertising, entered into an agreement with a consortium of New York City hospitals for the referral of cancer patients for treatment at its facility, and provided the consortium’s doctors with privileges at its facility. In contrast to Paterno v Laser Spine Inst. (24 NY3d 370 [2014]), a medical malpractice action in which the plaintiff argued that New York courts had jurisdiction over a Florida-based facility and its doctors based on an advertisement and communications, in this case, plaintiff did not seek out PPM. She says that she was directed to PPM by her New York doctor, defendant Raj Shrivastava, as part of a referral fee agreement, that Dr. Shrivastava thereafter co-managed her care, and that PPM billed her directly for Dr. Shrivastava’s services. Robins v Procure Treatment Ctrs., Inc., 2018 NY Slip Op 00464, First Dept 1-25-18

CIVIL PROCEDURE (PERSONAL JURISDICTION, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/JURISDICTION (CIVIL PROCEDURE, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/DISCOVERY (CIVIL PROCEDURE, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/CPLR 3211 (d) (DISCOVERY, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/CPLR 301 (PERSONAL JURISDICTION, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/CPLR 302 (PERSONAL JURISDICTION, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/GENERAL JURISDICTION (CPLR 301, PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))/SPECIFIC JURISDICTION (CPLR 302 (A)(1), PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT))

January 25, 2018

/ Attorneys, Contract Law

PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT).

The First Department determined defendant-attorneys’ motion to dismiss the breach of contract cause of action, alleging the failure to return the balance of fees paid, was properly denied. Plaintiff alleged there was an oral agreement to return any few balance remaining when the action was resolved. Defendants did not provide plaintiff with an accounting of the hour spent on the case:

Defendants moved to dismiss, arguing that the breach of contract claim was not adequately pleaded and that plaintiff’s claim is barred by the “voluntary payment doctrine.”

The voluntary payment doctrine “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” … . In the context of an attorney-client relationship, the attorney bears the burden of showing that the parties’ fee agreement was fair, reasonable, and fully known and understood by plaintiff … .

Plaintiff has sufficiently alleged a claim for breach of contract based on defendants’ failure to return the unearned balance of his retainer, pursuant to the parties’ oral agreement … . While defendants assert that plaintiff voluntarily made payments to compensate them for their services, they have not established that plaintiff had full knowledge of the relevant facts, such as the number of hours spent by defendants in connection with their representation of him … . Nor did they submit any evidence to show that the amount of plaintiff’s payments was fair and reasonably related to the value of services rendered … . Dubrow v Herman & Beinin, 2018 NY Slip Op 00478, First Dept 1-25-18

ATTORNEYS (FEES, CONTRACT LAW, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/CONTRACT LAW (ATTORNEY’S FEES, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/ATTORNEY’S FEES (CONTRACT LAW, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))/VOLUNTARY PAYMENT DOCTRINE (ATTORNEY’S FEES, PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT))

January 25, 2018

/ Evidence, Real Estate

PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT).

The First Department determined plaintiff Zaccaro was a real estate broker, not a finder, and was not entitled to a real estate commission because plaintiff acted as a broker for the buyer and the seller (impermissible dual agency without full disclosure):

Plaintiffs’ argument that Zaccaro was merely a finder instead of a real estate broker is unavailing. The amended complaint, which was verified by Zaccaro’s president, alleges that plaintiffs were [the buyer’s] real estate brokers. This statement constitutes a formal judicial admission …”.

Furthermore, a finder has no obligation to negotiate the real estate transaction in order to obtain its fee … . Here, the amended complaint indicates that plaintiffs were obligated to negotiate the sale of the premises. In particular, the amended complaint alleges that [the buyer] authorized plaintiffs “to act as the licensed real estate brokers … . …

Plaintiffs’ contention that the seller was not injured by Zaccaro’s dual agency is unavailing. Where, as here, the duty of undivided loyalty is breached, plaintiff broker forfeits its right to a commission, “regardless of whether damages were incurred” … . P. Zaccaro, Co., Inc. v DHA Capital, LLC, 2018 NY Slip Op 00458, First Dept 1-25-18

REAL ESTATE (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/BROKERS, REAL ESTATE (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/DUAL AGENCY (REAL ESTATE, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/FINDER (REAL ESTATE, (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/EVIDENCE (JUDICIAL ADMISSION, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/JUDICIAL ADMISSION (PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))/ADMISSION (JUDICIAL ADMISSION, PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT))

January 25, 2018

/ Negligence, Vehicle and Traffic Law

PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this bus-pedestrian accident case should have been granted. The court noted that even if the cross signal changed while plaintiff was crossing, he was permitted to proceed once he started crossing:

Plaintiff established his entitlement to partial summary judgment through his testimony that he was crossing the intersection within the crosswalk and with the light in his favor, when defendants’ bus struck him while making a left turn … .. The testimony of defendant bus driver does not contradict plaintiff’s testimony that he was in the crosswalk, since the driver did not see plaintiff until the moment of impact. The driver’s observation of a white crossing signal before commencing his turn also does not contradict plaintiff’s testimony that he started crossing with the light in his favor. …

The court should not have considered the videotape footage defendants provided as defendants neither authenticated it nor even showed that it had any relevance to the accident at issue … . It indicates, at most, that it was raining. Even if it showed, as defendants claim, that the pedestrian cross signal changed as plaintiff was crossing, that would not help defendants, as plaintiff was permitted to proceed across the avenue, once he started crossing with the signal in his favor (see Vehicle and Traffic Law § 1112 [b], [c]…). Torres v Werner Bus Lines, Inc., 2018 NY Slip Op 00483, First Dept 1-25-18

NEGLIGENCE (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/TRAFFIC ACCIDENTS (BUS-PEDESTRIAN ACCIDENT, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))/PEDESTRIANS (TRAFFIC ACCIDENTS, PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT))

January 25, 2018

/ Negligence

TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT TOW TRUCK WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendant’s tow truck merely furnished the condition for the rear-end collision and was not the proximate cause. The tow truck driver was in the process of hooking up a car (a Jetta) to tow it off the expressway when the Jetta was struck from behind by an intoxicated driver (Ripoli) who had fallen asleep. Plaintiff was a passenger in the Jetta:

Defendants-appellants are entitled to summary judgment, because the tow truck driver’s affirmative negligence, if any, did nothing more than furnish the condition or give rise to the occasion by which plaintiff’s injury was made possible… .. There is no allegation that their actions violated a traffic regulation and the record shows that the tow truck driver was in the process of securing the vehicle to tow it off the expressway when the accident happened.

Plaintiff’s assertion that the accident would not have occurred if the tow truck driver had placed additional flares or moved the ones that the police officers had placed, displayed cones or removed the Jetta from the location sooner is speculative and insufficient to raise an issue of fact, because it is undisputed that Ripoli fell asleep before his vehicle rear- ended the Jetta … . McLean v Ripoli, 2018 NY Slip Op 00461, First Dept 1-25-18

NEGLIGENCE (TRAFFIC ACCIDENTS, TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRAFFIC ACCIDENTS (TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/CONDITION FOR THE ACCIDENT (TRAFFIC ACCIDENTS, TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))/PROXIMATE CAUSE (TRAFFIC ACCIDENTS, TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT))

January 25, 2018

/ Municipal Law, Negligence

QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs had raised a question of fact whether the city created the dangerous condition, a sinkhole in the roadway, which caused plaintiffs injuries after a wheel on their police car went into the hole:

… [P]laintiffs have met their burden of showing that there are triable issues of fact as to whether the City’s affirmative negligence created the defect … . Specifically, plaintiff’s testimony and affidavit demonstrate that the City attempted to repair the sinkhole on August 27, 2011. Moreover, the City has conceded based on the CAR report that it worked to fill the sinkhole on August 27, 2011 (eleven days prior to the accident) and August 28, 2011 (ten days prior to the accident). The affidavit of plaintiffs’ expert raises the issues of whether the City’s affirmative repair of the sinkhole negligently created a defective condition causing the repair to fail immediately after it was made. There is nothing in the record here to indicate that the dangerous condition in question developed over time … . Bania v City of New York, 2018 NY Slip Op 00470, First Dept 1-25-18

MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/HIGHWAYS AND ROADS (MUNICIPAL LAW, TRAFFIC ACCIDENTS, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/SINKHOLES (MUNICIPAL LAW, TRAFFIC ACCIDENTS, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/TRAFFIC ACCIDENTS (SINKHOLES, MUNICIPAL LAW, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))

January 25, 2018

Search Results

NEGLIGENCE AND LABOR LAW 200 CAUSES OF ACTION IN THIS ELECTROCUTION CASE SHOULD HAVE BEEN DISMISSED, NO CODE VIOLATIONS, DEFENDANTS NEVER NOTIFIED THE TRANSFORMERS IN THE ELEVATOR CONTROL ROOM CONSTITUTED A DANGEROUS CONDITION (FIRST DEPT).

HEARING OFFICER DID NOT MAKE AN ADEQUATE INQUIRY TO DETERMINE WHY AN INMATE WITNESS WHO HAD PREVIOUSLY AGREED TO TESTIFY LATER REFUSED, NEW HEARING ORDERED (THIRD DEPT).

FINDING THAT PETITIONER POSSESSED A WEAPON FOUND IN A CUBE SHARED WITH OTHER INMATES NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, DETERMINATION ANNULLED (THIRD DEPT).

POLICE OFFICER’S EXPECTATION THAT DEFENDANT WOULD BE ARRESTED DID NOT HAVE ANY BEARING ON WHETHER DEFENDANT WAS IN CUSTODY, MOTION TO SUPPRESS STATEMENT PROPERLY DENIED (FIRST DEPT).

PLAINTIFF MADE A SUFFICIENT SHOWING OF PERSONAL JURISDICTION OVER A NEW JERSEY RADIATION TREATMENT CLINIC TO BE ENTITLED TO DISCOVERY (FIRST DEPT).

PLAINTIFF’S ACTION FOR BREACH OF CONTRACT, ALLEGING DEFENDANT-ATTORNEYS FAILED TO RETURN THE BALANCE OF THE FEE PAID AT THE CONCLUSION OF THE CASE, PROPERLY SURVIVED A MOTION TO DISMISS (FIRST DEPT).

PLAINTIFF ACTED AS A REAL ESTATE BROKER FOR BOTH BUYER AND SELLER, DUAL AGENCY WAS NOT DISCLOSED, PLAINTIFF NOT ENTITLED TO COMMISSION, STATEMENT IN COMPLAINT THAT PLAINTIFF WAS A BROKER WAS A JUDICIAL ADMISSION, PRECLUDING ANY CLAIM PLAINTIFF WAS MERELY A FINDER (FIRST DEPT).

PLAINTIFF PEDESTRIAN ENTITLED TO SUMMARY JUDGMENT IN THIS BUS-PEDESTRIAN ACCIDENT CASE, EVEN IF THE CROSSING LIGHT CHANGED WHILE PLAINTIFF WAS CROSSING HE WAS ENTITLED TO PROCEED (FIRST DEPT).

TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT TOW TRUCK WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

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